85112 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 

1LAC 33:III.2201.K Startup and Shutdown 

‘‘1. For affected point sources that are shut down 

intentionally more than once per month, the owner 

or operator shall include NOX emitted during 

periods of start-up and shutdown for purposes of 

determining compliance with the emission factors 

set forth in Subsection D of this Section, or with 

Dated: December 3, 2023. 

Douglas M. Schofield, 

Rear Admiral, U.S. Coast Guard, Commander, 

Coast Guard Seventh District. 

[FR Doc. 2023–26850 Filed 12–6–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2023–0938] 

Safety Zone; Sausalito Lighted Boat 

Parade Fireworks Display, Richardson 

Bay, Sausalito, CA 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the safety zone in the navigable waters 

of Richardson Bay, off Sausalito, CA, in 

support of the Sausalito Lighted Boat 

Parade Fireworks Display. This safety 

zone is necessary to protect personnel, 

vessels, and the marine environment 

from the dangers associated with 

pyrotechnics. During the enforcement 

period, unauthorized persons or vessels 

are prohibited from entering into, 

transiting through, or remaining in the 

safety zone, unless authorized by the 

designated Patrol Commander 

(PATCOM) or other Federal, state, or 

local agencies on scene to assist the 

Coast Guard in enforcing the regulated 

area. 

DATES: The regulations in 33 CFR 

165.1191, will be enforced for the 

location in Table 1 to § 165.1191, Item 

number 30, from 7:15 p.m. through 9 

p.m. on December 9, 2023. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email LT William Harris, U.S. Coast 

Guard Sector San Francisco Waterways 

Management Division; telephone 415– 

399–7443, email SFWaterways@

uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the safety zone 

established in 33 CFR 165.1191, Table 1, 

Item number 30, for the Sausalito 

Lighted Boat Parade Fireworks on 

December 9, 2023. The Coast Guard will 

enforce a 600-foot safety zone around 

the fireworks vessel from 7:15 through 

9 p.m. on December 9, 2023, while at 

the launch site off Sausalito Point. 

Beginning at 7:15 p.m. on December 9, 

2023, 30 minutes prior to the 

commencement of the 15-minute 

fireworks display, the safety zone will 

encompass all navigable waters, from 

surface to bottom, surrounding the 

fireworks vessel near Sausalito Point in 

Sausalito, CA within a radius of 600 feet 

from approximate position 37°51′30.66′′ 

N, 122°28′27.29′′ W (NAD 83) for the 

Sausalito Lighted Boat Parade Fireworks 

Display as set forth in 33 CFR 165.1191, 

Table 1, Item number 30. The safety 

zone will be enforced from 7:15 p.m. 

through 9 p.m. on December 9, 2023. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard plans to provide 

notification of this enforcement period 

via the Local Notice to Mariners and 

Marine Information Broadcast. 

Under the provisions of 33 CFR 

165.1191, unauthorized persons or 

vessels are prohibited from entering 

into, transiting through, or anchoring in 

the safety zone during all applicable 

effective dates and times, unless 

authorized to do so by the PATCOM or 

other Official Patrol defined as Federal, 

State, or local law enforcement agency 

on scene to assist the Coast Guard in 

enforcing the regulated area. 

Additionally, each person who received 

notice of a lawful order or direction 

issued by the PATCOM or Official 

Patrol shall obey the order or direction. 

The PATCOM or Official patrol may, 

upon request, allow the transit of 

commercial vessels through regulated 

areas when it is safe to do so. 

If the Captain of the Port determines 

that the regulated area need not be 

enforced for the full duration stated in 

this notice, a Marine Information 

Broadcast, an entry in the Local Notice 

to Mariners, or actual notice may be 

used to grant permission to enter the 

regulated area. 

Dated: November 30, 2023. 

Taylor Q. Lam, 

Captain, U.S. Coast Guard, Captain of the 

Port San Francisco. 

[FR Doc. 2023–26796 Filed 12–6–23; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2019–0212; FRL–10997– 

02–R6] 

Air Plan Disapproval; Louisiana; 

Excess Emissions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Pursuant to the Federal Clean 

Air Act (CAA or the Act), the 

Environmental Protection Agency (EPA) 

is disapproving a State Implementation 

Plan (SIP) revision submitted by the 

State of Louisiana, through the 

Louisiana Department of Environmental 

Quality (LDEQ), on November 20, 2016, 

and supplemented on June 9, 2017. The 

submittals were in response to the 

EPA’s national SIP call on June 12, 

2015, concerning excess emissions 

during periods of Startup, Shutdown, 

and Malfunction (SSM). EPA is 

finalizing a determination that the 

revision to the SIP in the submittals 

does not correct the deficiency with the 

Louisiana SIP identified in the June 12, 

2015 SIP call. We are taking this action 

in accordance with section 110 of the 

Act. 

DATES: This rule is effective on January 

8, 2024. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2019–0212. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet. Publicly available docket 

materials are available electronically 

through https://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar, Regional Haze and SO2

Section, EPA Region 6 Office, 1201 Elm 

Street, Suite 500, Dallas, Texas 75270, 

(214) 665–6691, Shar.alan@epa.gov. 

Please call or email the contact listed 

above if you need alternative access to 

material indexed but not provided in 

the docket. 

SUPPLEMENTARY INFORMATION: 

Throughout this document ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ means the EPA. 

I. Background 

The background for this action is 

discussed in detail in our June 13, 2023 

(88 FR 38448) proposal where we 

proposed to disapprove a revision to the 

Louisiana SIP, which requested the 

removal of section LAC 33:III.2201.C.8 

and approval of a new section, LAC 

33:III.2201.K, titled Startup and 

Shutdown, in its place.1 LAC 


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an alternative plan approved in accordance with 

Paragraph E.1 or 2 of this Section. 

2. For all other affected point sources, effective 

May 1, 2017, the owner or operator shall either 

comply with Paragraph K.1 of this Section or the 

work practice standards described in Paragraph K.3 

of this Section during periods of start-up and 

shutdown. If the owner or operator chooses to 

comply with work practices standards, the emission 

factors set forth in Subsection D of this Section 

shall not apply during periods of start-up and 

shutdown. 

3. Work Practice Standards 

a. The owner or operator shall operate and 

maintain each affected point source, including any 

associated air pollution control equipment and 

monitoring equipment, in a manner consistent with 

safety and good air pollution control practices for 

minimizing emissions. 

b. Coal-fired and fuel oil-fired electric power 

generating system boilers and fuel oil-fired 

stationary gas turbines shall use natural gas during 

start-up. Start-up ends when any of the steam from 

the boiler or steam turbine is used to generate 

electricity for sale over the grid or for any other 

purpose (including on-site use). If another fuel must 

be used to support the shutdown process, natural 

gas shall be utilized. 

c. Engage control devices such as selective 

catalytic reduction (SCR) or selective non-catalytic 

reduction (SNCR) as expeditiously as possible, 

considering safety and manufacturer 

recommendations. The department shall 

incorporate into the applicable permit for each 

affected facility appropriate requirements 

describing the source-specific conditions or 

parameters identifying when operation of the 

control device shall commence. 

d. Minimize the start-up time of stationary 

internal combustion engines to a period needed for 

the appropriate and safe loading of the engine, not 

to exceed 30 minutes. 

e. Maintain records of the calendar date, time, 

and duration of each start-up and shutdown. 

f. Maintain records of the type(s) and amount(s) 

of fuels used during each start-up and shutdown. 

g. The records required by Subparagraphs K.3.e 

and f of this Section shall be kept for a period of 

at least five years and shall be made available upon 

request by authorized representatives of the 

department. 

4. On or before May 1, 2017, the owner or 

operator shall notify the Office of Environmental 

Services whether each affected point source will 

comply with Paragraph K.1 or K.3 of this Section 

during periods of start-up and shutdown. 

a. The owner or operator does not have to select 

the same option for every affected point source. 

b. The department shall incorporate into the 

applicable permit for each affected facility the 

provisions of Paragraph K.1 and/or K.3 of this 

Section, as appropriate. The owner or operator may 

elect to revise the method of compliance with 

Subsection K of this Section for one or more 

affected point sources by means of a permit 

modification.’’ 

2See LAC 33:III.2201.A(1). 

3 80 FR 33840 (June 12, 2015), State 

Implementation Plans: Response to Petition for 

Rulemaking; Restatement and Update of EPA’s SSM 

Policy Applicable to SIPs; Findings of Substantial 

Inadequacy; and SIP Calls To Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown and Malfunction; Final Rule. 

4 It is worth noting that the decline in design 

values of ozone presented by the commenter covers 

a period before the effective date of LAC 

33:III.2201.K. 

33:III.2201.K would require affected 

Nitrogen Oxides (NOX) point sources to 

comply with either: (1) the applicable 

emission limitations and standards at all 

times, including periods of startup and 

shutdown; or (2) the applicable 

emission limitations and standards at all 

times, except during periods of startup 

and shutdown covered by work practice 

standards permissible under the rule. 

Thus, owners and operators of sources 

that choose not to comply with the 

numeric emission limitations during 

periods of startup and shutdown would 

be allowed to comply with alternative 

work practice standards. The owner or 

operator would not have to select the 

same method of compliance (option) for 

every affected point source and would 

be allowed to revise its selection of the 

method of compliance for one or more 

affected point sources by means of a 

permit modification. Any 

noncompliance with the emission 

limitations or with the alternative plan 

would be submitted in writing within 

90 days of the end of each ozone season 

(May 1–September 30, inclusive) to the 

administrative authority. The affected 

NOX point sources of concern are 

electric power generating system 

boilers, industrial boilers, process 

heaters and furnaces, stationary gas 

turbines, and stationary internal 

combustion engines in the Baton Rouge 

ozone nonattainment area and its 

Region of Influence (ROI). The Baton 

Rouge ozone nonattainment area 

consists of five parishes: Ascension, 

East Baton Rouge, Iberville, Livingston, 

and West Baton Rouge, and the ROI is 

an area to the north of the Baton Rouge 

ozone nonattainment area that 

encompasses affected facilities in the 

attainment parishes of East Feliciana, 

Pointe Coupee, St. Helena, and West 

Feliciana.2

In the June 13, 2023 (88 FR 38448) 

notice, we proposed to determine that 

the SIP revision (the November 20, 2016 

submittal, and its June 9, 2017 

supplement) does not correct substantial 

inadequacies identified in the June 12, 

2015 SIP call (hereinafter referred to as 

the ‘‘2015 SSM SIP Action’’).3 The 

proposal did not reopen the 2015 SSM 

SIP Action and only took comment on 

whether the proposed Louisiana SIP 

revision is consistent with CAA 

requirements and whether it addressed 

the substantial inadequacy identified in 

the 2015 SSM SIP Action for LAC 

33:III.2201.C.8 of the Louisiana SIP. 

II. Summary of Comments 

The public comment period for our 

proposed disapproval and 

determination ended on July 13, 2023, 

and we received comments from Sierra 

Club, LDEQ, industry groups, and one 

anonymous commenter. 

In general, Sierra Club expressed 

support for the proposed disapproval. 

LDEQ disagreed with EPA’s conclusions 

and believed that the work practice 

standards under LAC 33:III.2201.K are 

consistent with the CAA and the 2015 

SSM SIP policy. The Louisiana 

Chemical Association and the Louisiana 

Mid-Continent Oil & Gas Association 

(hereinafter ‘‘Industry commenters’’) 

stated that EPA’s proposed disapproval 

is unwarranted and arbitrary and 

capricious; thus, they requested that 

EPA withdraw its proposed disapproval. 

Finally, an anonymous commenter 

questioned the relevance of detailed 

demographic information and 

Environmental Justice (EJ) 

considerations with respect to the 

proposal and the 2015 SSM SIP Action. 

The full text of all the comments 

received is in the docket for this action. 

A summary of the comments and EPA’s 

responses are provided in the next 

section. 

III. Response to Comments 

A. Industry and LDEQ Comments 

Comment 1: Industry commenters 

stated that the addition of the excess 

emissions provisions in LAC 

33:III.2201.K does not render 

Louisiana’s SIP ‘‘substantially 

inadequate.’’ The commenters asserted 

that EPA’s proposed disapproval of the 

State’s SIP submittal (requesting the 

addition of LAC 33:III.2201.K to the 

Louisiana SIP) is based on policy 

preferences published as 

recommendations and that EPA is using 

its recommendations as rigid 

requirements to disapprove Louisiana’s 

excess emissions SIP provisions. The 

commenters specifically noted that the 

EPA does not demonstrate that the SIP 

is inadequate to protect air quality, 

pointing to declines in NOX emissions 

and the 8-hour ozone design value of 

the Baton Rouge area. 

Response: EPA is cognizant of and 

appreciates LDEQ’s efforts in reducing 

ozone National Ambient Air Quality 

Standards (NAAQS) design values in 

the Baton Rouge area.4 Evidence that 

NOX emissions and ozone 

concentrations have decreased, though, 

is not by itself a sufficient basis to find 

that a potential revision to the SIP meets 

all CAA requirements for SIPs (e.g., the 

CAA requirement that SIPs include 

enforceable emission limitations that 

limit emissions on a continuous basis). 

Also, as stated in the 2015 SSM SIP 

Action, even if historically excess 

emissions have not caused or 

contributed to an exceedance or a 

violation, this would not mean that they 

could not do so at some time in the 


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85114 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 

5 80 FR 33840, 33947. 

6 78 FR 12460, 12522 (February 22, 2013). 

7 80 FR 33840, 33968. 

8See id. at 33980. 

9 Id. at 33912. 

10 Id. at 33980. 

11See Enclosures to EPA’s August 3, 2016, and 

December 16, 2016 comment letters to Deidra 

Johnson of LDEQ. 

12Section II.A, June 13, 2023 (88 FR 38450). 

13See CAA sections 110(a)(2)(A), 110(a)(2)(C), 

also 88 FR 38451. 

14See 78 FR at 12521–12522, and 80 FR at 33967– 

33968 for a thorough description of why Louisiana’s 

SIP is substantially inadequate because it ‘‘did not 

comply with any requirement of’’ the CAA. 

15 80 FR 33914. 

16See Applicability LAC 33:III.2201.A.1. 

17See Definitions LAC 33:III.2201.B.1. 

18See NOX Emission Factors for Sources in the 

Baton Rouge Nonattainment Area Table D–1A, and 

NOX Emission Factors for Sources in the Region of 

Influence Table D–1B, Section LAC 33:III.2201.D. 

19See NOX Emission Factors for Sources in the 

Baton Rouge Nonattainment Area Table D–1A, and 

NOX Emission Factors for Sources in the Region of 

Influence Table D–1B, Section LAC 33:III.2201.D. 

future. In addition, given that there are 

many locations where air quality is not 

monitored such that a NAAQS 

exceedance or violation due to excess 

emissions could be observed, the 

inability to demonstrate that such 

excess emissions have not caused or 

contributed to an exceedance or 

violation would not be proof that they 

have not.5

Section LAC 33:III.2201.C.8 was 

identified as substantially inadequate 

because this provision allowed for 

automatic exemptions for certain 

sources in the Baton Rouge ozone 

nonattainment area during startup and 

shutdowns from otherwise applicable 

NOX emission limitations and such 

exemptions are inconsistent with the 

fundamental requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k).6 Accordingly, in the 2015 SSM 

SIP Action, EPA found that the 

exemption provision in LAC 

33:III.2201.C.8 is substantially 

inadequate to meet CAA requirements 

and issued a SIP call with respect to this 

provision.7 The removal of the 

exemption provision of LAC 

33:III.2201.C.8 from the Louisiana SIP is 

consistent with CAA requirements; 

however, for the reasons discussed in 

our proposal and this final rule, the 

alternative emissions limit provisions of 

LAC 33:III.2201.K do not meet the CAA 

requirements for SIPs and the 

requirements of CAA section 110(l) for 

EPA approval of a revision to a SIP. 

Regarding the comment concerning 

EPA’s alleged use of recommendations 

as requirements, we believe the 

commenter is referring to the seven 

criteria for the development of 

Alternative Emission Limitations (AELs) 

applicable during startup and shutdown 

events.8 In the context of making 

recommendations to states for how to 

address emissions during startup and 

shutdown, the EPA recommended seven 

criteria for states to evaluate in 

establishing appropriate alternative 

emission limitations. Among the 

purposes for these recommendations 

was the need to take into account 

technological limitations that might 

prevent compliance with the otherwise 

applicable emission limitations, while 

ensuring that those alternative 

limitations complied with the 

continuity and enforceability 

requirements of the CAA.9 In its 2015 

SSM SIP Action,10 comment letters to 

the State,11 and the proposal notice for 

this action,12 EPA has referred to and 

identified these seven criteria as 

recommendations to be given 

consideration for developing AELs in 

SIP provisions that apply during 

startups and shutdowns. To be clear, 

our disapproval of Louisiana’s SIP 

submittals is not based solely upon the 

recommended criteria but upon the 

statutory requirements and the 

applicable court decision discussed 

herein.13 In particular, EPA’s final 

disapproval action is based on the fact 

that Louisiana’s submissions have failed 

to correct the ‘‘substantial inadequacy’’ 

of the Louisiana SIP as identified in the 

2015 SSM SIP Action.14

Comment 2: Following the prior 

comment from the Industry commenters 

that the excess emission provisions in 

LAC 33:III.2201.K do not render 

Louisiana’s SIP ‘‘substantially 

inadequate,’’ commenters then 

discussed EPA’s seven recommended 

criteria to consider in establishing AELs 

set forth in the 2015 SSM SIP Action.15

First, the Industry commenters argued 

that the work practice standards in LAC 

33:III.2201.K are limited to specific, 

narrowly defined source categories 

using specific control strategies, 

satisfying EPA’s first recommended 

criterion. The commenters noted that 

LAC 33:III.2201.K.3.c addresses 

‘‘specific control strategies’’ and 

requires affected point sources to engage 

control devices as expeditiously as 

possible. The commenters, citing to 

LDEQ’s comments, also alleged that 

LAC 33:III.2201.K.3.c is potentially 

applicable to each category of point 

sources regulated under LAC 

33:III.Chapter 22. 

Response: In the example provided in 

the 2015 SSM SIP Action for the first 

AEL criterion, EPA lists an affected 

source category as ‘‘cogeneration 

facilities burning natural gas and using 

Selective Catalytic Reduction (SCR).’’ 

This example specifies a subset of 

power generation facilities 

(cogeneration facility), identifies a 

certain fuel capability (natural gas), and 

narrows the number of affected sources 

to ones with a specific type of post 

combustion control device (SCR). 

Contrary to EPA’s recommendation that 

AELs be limited to narrowly defined 

sources categories, LDEQ’s November 

20, 2016, and June 9, 2017 submittals 

define the affected sources covered by 

the new rule as a collection of groups of 

categories of sources to include electric 

power generating system boilers, 

industrial boilers, process heaters and 

furnaces, stationary gas turbines, and 

stationary internal combustion engines. 

These affected sources constitute a 

diverse array of NOX emitting source 

categories within the Baton Rouge ozone 

nonattainment area and its ROI. These 

sources can be located in any of the nine 

parishes (Ascension, East Baton Rouge, 

Iberville, Livingston, West Baton Rouge, 

East Feliciana, Pointe Coupee, St. 

Helena, and West Feliciana).16

In addition, the following three 

examples demonstrate that the affected 

source categories are indeed broad in 

type, size, age, and are not narrowly 

defined. In the first example, the work 

practice requirements of LAC 

33:III.2201.K apply to affected electric 

power generating system boilers which 

are defined as units used to generate 

electric power and can be owned or 

operated by a municipality, an electric 

cooperative, an independent power 

producer, a public utility, or a Louisiana 

Public Service Commission regulated 

utility company, or any of its 

successors.17 The subject boilers can be 

coal-fired, number 6 fuel oil-fired, or 

burn gaseous or liquid as fuel, and 

located in either the Baton Rouge ozone 

nonattainment area or its ROI.18 In 

addition, these boilers are not restricted 

to a specific construction, 

reconstruction, or equipment 

modification date. Another example of 

an affected point source category 

covered by LAC 33:III.2201.K is 

stationary gas turbines that are defined 

as units that can be of peaking service 

type or, either fuel-oil fired or gas fired, 

can be located in any of the nine 

parishes, and are not restricted to a 

specific construction, reconstruction, or 

equipment modification date.19 Finally, 

stationary internal combustion engines, 

also covered by LAC 33:III.2201.K, are 

defined as units classified either as rich 


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20Rich burn engine means any 4-stroke spark 

ignited engine where the manufacturer’s 

recommended operating air/fuel ratio divided by 

the stoichiometric air/fuel ratio at full load 

conditions is less than or equal to 1.1, see 40 CFR 

60.4248 ‘‘Rich burn engine’’. 21Lean burn engine means any 2-stroke or 4- 

stroke spark ignited engine that does not meet the 

definition of a rich burn engine, see 40 CFR 60.4248 

‘‘Lean burn engine’’. 22See Definitions LAC 33:III.2201.B.1. 

23Spark ignition means a gasoline-fueled engine; 

or any other type of engine with a spark plug (or 

other sparking device) and with operating 

characteristics significantly similar to the 

theoretical Otto combustion cycle. Spark ignition 

engines usually use a throttle to regulate intake air 

flow to control power during normal operation, see 

40 CFR 60.4248 ‘‘Spark ignition’’. 

24See response to Comment 5 concerning the use 

and effectiveness of SCR and SNCR. 25 2-stroke engine means a type of engine which 

completes the power cycle in single crankshaft 

revolution by combining the intake and 

compression operations into one stroke and the 

power and exhaust operations into a second stroke. 

This system requires auxiliary scavenging and 

inherently runs lean of stoichiometric, see 40 CFR 

60.4248 ‘‘Two-stroke engine’’. 

26 4-stroke engine means any type of engine 

which completes the power cycle in two crankshaft 

revolutions, with intake and compression strokes in 

the first revolution and power and exhaust strokes 

in the second revolution, see 40 CFR 60.4248 

‘‘Four-stroke engine’’. 

27LAC 33:III.2201.B Definitions. 

burn 20 or lean burn,21 are either gas 

and/or liquid fuel fired, and are either 

attached to a foundation or portable.22

These stationary internal combustion 

engines can be located in any of the 

nine parishes and are not restricted to 

a specific construction, reconstruction, 

or equipment modification date. 

The effect of such a broadlyapplicable rule covering a diverse array 

of source categories is that the work 

practices set forth in LAC 

33:III.2201.K.3 during periods of startup 

and shutdown cannot be sufficiently 

tied to particular, specific categories of 

affected sources to ensure the work 

practices serve to limit emissions from 

the particular category and are 

practically enforceable. For example, 

startup and shutdown emissions from 

affected industrial boilers and process 

heaters/furnaces that do not utilize a 

control device to comply with the SIP 

rule have no specifically applicable 

work practice standards; they are 

governed only by the general duty 

provision in LAC 33:III.2201.K.3.a. As is 

discussed at length in the 2015 SSM SIP 

Action, such general duty provisions are 

not practically enforceable. 

Louisiana has made conclusory and 

nonspecific claims that the work 

practice requirements of LAC 

33:III.2201.K.3.c (relating to the use of 

control devices such as SCR) are 

‘‘potentially applicable’’ to all affected 

source categories covered under LAC 

33:III.2201.K.3. Louisiana, however, has 

not clearly demonstrated that every 

source in every covered point source 

category would be required to comply 

with the more specific work practice 

standards laid out in LAC 

33:III.2201.K.3.b–d in addition to the 

general duty provision in LAC 

33:III.2201.K.3.a. In fact, it is likely that 

certain boilers, furnaces, and process 

heaters comply with the LAC 

33:III.Chapter 22 requirements during 

steady-state operations by utilizing low 

NOX burners rather than controls such 

as Selective Non-Catalytic Reduction 

(SNCR) or SCR and thus would only be 

subject to the general duty provisions of 

LAC 33:III.2201.K.3.a, if selecting the 

LAC 33:III.2201.K.3 compliance option. 

Therefore, in such instances, LAC 

33:III.2201.K.3 may be read so as to 

create situations wherein startup and 

shutdown emissions are functionally 

exempt, thereby creating a noncontinuous emissions limitation that is 

inconsistent with CAA requirements for 

SIPs. The framework established in 

Chapter 22 thus continues to violate 

CAA requirements, including the 

requirement that emissions limitations 

be continuous and practicably 

enforceable. See CAA sections 110 and 

302(k). Additional concerns related to 

other CAA requirements are discussed 

below, including the requirement that 

the work practice requirements in the 

AEL (LAC 33:III.2201.K.3) must provide 

RACT-level controls during periods of 

startup and shutdown. 

Comment 3: LDEQ also provided 

comments stating its belief that it had 

appropriately considered EPA’s first 

recommended criterion in its 

development of the AELs contained in 

LAC 33:III.2201.K.3b–3.d. More 

specifically, LDEQ asserted that since 

LAC 33:III.2201.K.3.b targets fuel 

selection, the ‘‘specific control 

strategies’’ aspect of the first criterion is 

not relevant. Also, since LAC 

33:III.2201.K.3.c targets postcombustion control of NOX, LDEQ 

claimed that the ‘‘specific, narrowly 

defined source categories’’ aspect of the 

first criterion is not relevant. Finally, 

LDEQ noted that LAC 33:III.2201.K.3.d 

applies only to rich-burn and lean-burn 

spark-ignition 23 stationary internal 

combustion engines. 

Response: EPA finds that the AELs 

contained in sections LAC 

33:III.2201.K.3.b, 3.c, and 3.d cover such 

a broad range of sources that they do not 

comport with EPA’s recommendation 

that AELs be limited to specific, 

narrowly defined source categories 

using specific control strategies, thereby 

leading to difficulties in determining 

compliance with the applicable SIP 

emissions limitations. 

LAC 33:III.2201.K.3.b applies to coalfired and fuel oil-fired electric power 

generating system boilers and fuel oilfired stationary gas turbines. EPA 

believes that the requirement under 

LAC 33:III.2201.K.3.b to use natural gas 

during startup until ‘‘any of the steam 

from the boiler or steam turbine is used 

to generate electricity for sale over the 

grid or for any other purpose (including 

on-site use)’’ could be an acceptable 

component of an AEL, provided it is 

associated with appropriate and 

enforceable recordkeeping and reporting 

requirements. Note, since the boiler type 

(wall-fired, tangentially-fired, dry 

bottom or wet bottom) and boiler age are 

not specified, we assume that the work 

practice requirement to use natural gas 

during startups and applicable 

shutdowns applies to all such boilers. 

However, natural gas fired electric 

power generating system boilers not 

equipped with a SCR or SNCR only 

appear to be subject to the general duty 

provision of LAC 33:III.2201.K.3.a 

which, as discussed in our response to 

Comment 4, is problematic for 

enforcement and compliance 

determination purposes. 

With respect to the work practice 

requirement that applies to sources with 

control devices, LAC 33:III.2201.K.3.c 

requires affected sources to engage 

control devices as expeditiously as 

possible. The term ‘‘expeditiously as 

possible’’ is undefined and creates 

enforceability problems. Also, the term 

‘‘engage control devices’’ in LAC 

33:III.2201.K.3.c is not defined and 

could allow control devices to operate at 

much lower levels of removal efficiency 

than the equipment is capable of 

achieving. As written, section LAC 

33:III.2201.K.3.c is unclear which 

source categories are required to use the 

control devices, the timing of their use, 

and their control efficiency, thereby 

creating problems with enforceability.24

Regarding LDEQ’s comment that LAC 

33:III.2201.K.3.d is only applicable to 

rich-burn and lean-burn spark-ignition 

stationary internal combustion (IC) 

engines, we note that although it may 

appear these IC engines are narrowly 

defined, LAC 33:III.2201.K.3.d does not 

identify whether these spark ignition 

engines are of the 2-stroke 25 or the 4- 

stroke 26 type; these engines can burn 

either gas and or liquid fuel and do not 

have to be attached to a foundation (can 

be portable at a site for longer than 6 

months).27 Stationary Reciprocating 

Internal Combustion Engines (RICE) use 

either Compression Ignition (CI) or 

Spark Ignition (SI) in order to induce 

combustion within the cylinders. CI 


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28 ‘‘NOX Supplement’’ FR titled, ‘‘State 

Implementation Plans; Nitrogen Oxides 

Supplement to the General Preamble; Clean Air Act 

Amendments of 1990 Implementation of Title I; 

Proposed Rule,’’ November 25, 1992 (57 FR 55620). 

Also, see September 17, 1979 (44 FR 53762). 

29 80 FR at 33916. 

30 Id., n. # 257, while some HAPs are also VOCs 

or particulate matter, many HAPs are not. 

Moreover, there are many VOCs and types of 

particulate matter that are not HAPs and thus are 

not regulated under the MACT [Maximum 

Achievable Control Technology] standards. The 

MACT standards also do not address other criteria 

pollutants or pollutant precursors from sources that 

may be relevant for SIP purposes. 

31 Id. at 33916–33917 (emphasis added). 

32Control Techniques Guidelines and Alternative 

Control Techniques Documents for Reducing 

Ozone-Causing Emissions, see https://www.epa.gov/ 

RICE typically run on diesel fuel, while 

SI RICE typically operate on lighter 

fuels such as gasoline, propane, natural 

gas, landfill gas. While LDEQ’s 

comment letter discusses work practice 

measures for spark ignition 

reciprocating IC engines, LAC 

33:III.2201.K.3.d does not identify a 

specific work practice measure(s) for the 

CI RICE type units. In addition, this 

provision fails to identify the use of 

propane or landfill gas by such sources. 

As written, LAC 33:III.2201.K.3.d 

appears to apply to both CI RICE and SI 

RICE, contrary to LDEQ’s comment. 

Since these work practice measures 

apply to all of the types of engines, and 

this provision fails to identify the use of 

propane or landfill gas by such sources, 

EPA does not view these AELs as 

narrowly tailored. This conflict (lack of 

restriction) could lead to a 

misunderstanding of the applicability of 

LAC 33:III.2201.K.3.d and create 

compliance and enforcement 

difficulties. 

Comment 4: The Industry commenters 

also noted the concerns expressed in 

our proposal notice that improper 

consideration of EPA’s first 

recommended criterion could lead to 

AELs that present additional SIP 

approvability difficulties, including a 

demonstration that the work practice 

requirements in LAC 33:III.2201.K.3 met 

other CAA requirements for SIPs, 

including those related to Reasonably 

Available Control Technology (RACT). 

These commenters stated that LDEQ 

identified work practice standards that 

function to minimize emissions of NOX

based on review of applicable New 

Source Performance Standards (NSPS) 

and National Emission Standards for 

Hazardous Air Pollutants (NESHAP) 

provisions, relevant EPA Control 

Technique Guidelines (CTG) and 

Alternative Control Techniques (ACT), 

non-CTG/ACT documents, and EPA 

guidance. The Industry commenters 

concluded that because the review of 

the aforementioned sources did not 

identify control measures beyond what 

is included in LAC 33:III.2201.K, then 

those work practice requirements meet 

all applicable requirements for SIPs, 

including the imposition of enforceable 

RACT-level controls, for all the affected 

point sources subject to LAC 

33:III.2201.K. In a similar manner, 

LDEQ’s comments included a 

discussion of its evaluation of the 

documents referenced by the Industry 

commenters above and provides a table 

of the requirements in LAC 

33:III.2201.K.3 which identifies the 

federal NSPS and NESHAP provisions 

upon which they are based. Like the 

Industry commenters, LDEQ concluded 

that the work practice requirements 

established in LAC 33:III.2201.K.3 for 

emissions during startup and shutdown 

constitute RACT and meet all other 

applicable CAA requirements. LDEQ 

also clarified that LAC 33:III.2201.K.3.a 

should not be considered an AEL but 

rather a general duty provision. 

Response: As stated in our response to 

Comment 2, the work practice 

requirements in LAC 33:III.2201.K.3 

apply to a broad category of sources and 

fail to satisfy the CAA requirements for 

continuous emission limitations and 

practical enforceability. With respect to 

the CAA requirements concerning 

RACT as mentioned by the commenters, 

EPA first notes that RACT is defined as 

the lowest emission limitation that a 

particular source is capable of meeting 

by the application of control technology 

that is reasonably available considering 

technological and economic 

feasibility.28 LAC 33:III.Chapter 22 

Control of Emissions of Nitrogen Oxides 

was developed with the purpose of 

establishing RACT for point sources of 

NOX in the Baton Rouge ozone 

nonattainment area and its ROI. 

Therefore, in its development of AELs to 

apply during periods of startup and 

shutdown of Chapter 22-affected point 

sources, LDEQ examined several 

different resources in its search for work 

practices that would be considered 

appropriate replacements for the 

numerical emission limitations 

representing RACT found in the Chapter 

22 rules of the existing Louisiana SIP. 

We appreciate LDEQ’s efforts in 

searching NSPS and NESHAP rules in 

its attempt to develop RACT-level work 

practice requirements applicable to 

startups and shutdowns of the affected 

point source categories. The EPA agrees 

that states may adopt work practice 

standards to address periods of startup 

and shutdown as a component of a SIP 

emission limitation that applies 

continuously. As stated in the 2015 

SSM SIP Action, the adoption of work 

practice standards from a NESHAP or 

NSPS as a component of an emission 

limitation to satisfy SIP requirements 

was only a recommended approach that 

states may use if they choose to 

incorporate an AEL and needed 

assistance in identifying potential 

options that might work for their 

specific situation. The EPA stated that it 

cannot foretell the extent to which this 

optional approach of adopting other 

existing standards to satisfy SIP 

requirements may benefit an individual 

state. For a state choosing to use this 

approach, such work practice standards 

must meet the otherwise-applicable 

CAA requirements (e.g., be a RACTlevel control for the source as part of an 

attainment plan requirement) and have 

the necessary parameters to make it 

legally and practically enforceable (e.g., 

have adequate monitoring, 

recordkeeping and reporting 

requirements to assure compliance). 

However, it cannot automatically be 

assumed that emission limitation 

requirements in recent NESHAP and 

NSPS constitute RACT for all sources 

regulated by SIPs.29 The universe of 

sources regulated under the federal 

NSPS and NESHAP programs is not 

identical to the universe of sources 

regulated by states for purposes of the 

NAAQS. Moreover, the pollutants 

regulated under the NESHAP (i.e., 

hazardous air pollutants) are in many 

cases different than those that would be 

regulated for purposes of attaining and 

maintaining the NAAQS, protecting 

Prevention of Significant Deterioration 

(PSD) increments, improving visibility, 

and meeting other CAA requirements.30

The 2015 SSM SIP Action also states 

that EPA encourages states to explore 

these approaches, as well as any other 

relevant information available, in 

determining what is appropriate for 

revised SIP provisions.31 It is clear that 

EPA did not mandate these approaches. 

As stated earlier, adoption of NSPS or 

NESHAP work practice standards by the 

states does not mean an automatic 

approval of a proposed rule revision, 

especially when other applicable CAA 

requirements (e.g., RACT-level control 

for startup and shutdown, 

enforceability, and/or SIP public notice 

and comment) are not adhered to. 

With respect to the CTGs reviewed by 

LDEQ, we note that CTGs are used to 

help determine Volatile Organic 

Compounds (VOC) RACT, not NOX

RACT. Also, while LDEQ’s review of 

ACTs may provide background 

information on available NOX control 

technologies and their respective cost 

effectiveness,32 ACTs do not establish 


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ground-level-ozone-pollution/control-techniquesguidelines-and-alternative-control-techniques (Url 

dated August 2, 2023). 33See also comment #4 and comment #5 of our 

December 16, 2016, comment letter to Deidra 

Johnson of LDEQ as made available in the Docket. 

34LAC 33:III.2201.D Table D1–A. 

35 88 FR 38448, 38451 (June 13, 2023). 

36 80 FR 33979. 

37 Industry commenters noted that in EPA’s 

proposal notice, the Agency did not allege any 

specific deficiencies with criterion 3 (frequency and 

duration of operation in startup and shutdown 

modes are minimized, criterion 6 (the facility is 

operated in a manner consistent with good air 

pollution control practices for minimizing 

emissions), and criterion 7 (actions during startup 

and shutdown are properly documented). The June 

13, 2023 proposal did not identify deficiencies with 

respect to these criteria. 

work practice standards that function as 

RACT in minimizing emissions of NOX. 

Although included in LAC 

33:III.2201.K.3—Work Practice 

Standards, we agree with LDEQ’s 

clarification comment that LAC 

33:III.2201.K.3.a is a general duty 

provision, not an AEL. EPA supports the 

inclusion of general duty provisions as 

separate additional requirements in SIPs 

in certain instances—for example, to 

ensure that owners and operators act 

consistent with reasonable standards of 

care. However, as is discussed at length 

in the 2015 SSM SIP Action, a general 

duty provision such as LAC 

33:III.2201.K3.a., standing alone, cannot 

be considered an ‘‘enforceable emission 

limitation’’ under CAA section 

110(a)(2). As such, LAC 33:III.2201.K.3.a 

cannot and does not provide the 

necessary RACT-level control during 

periods of startup and shutdown.33 We 

reject the claim that since the State’s 

document review failed to identify any 

reasonably available control 

technologies for certain source 

categories, then there is no feasible and 

practical lowest emission limitation that 

these source categories would be 

capable of meeting during periods of 

startup and shutdown (i.e., the NOX

RACT level of emissions control is zero 

control) and the general duty provision 

of LAC 33:III.2201.K.3.a is the only SIP 

requirement to control NOX emissions 

during startups and shutdowns for some 

source categories covered by LAC 

33:III.2201.K.3. 

Overall, we find that the 

administrative record accompanying 

Louisiana’s SIP submittals does not 

sufficiently demonstrate that the generic 

work practice standards adopted in LAC 

33:III.2201.K.3 for each of the affected 

source categories represent RACT-level 

controls for periods of startup and 

shutdown. In correcting this deficiency, 

LDEQ could identify each affected point 

source category (e.g., gas-fired stationary 

gas turbines in peaking service) and 

discuss/analyze all the potential control 

technologies that might constitute RACT 

during periods of startup and shutdown. 

The age, design, and configuration of 

the affected sources may affect the 

determination of what constitutes RACT 

and should be accounted for in the 

analysis as well. The RACT analysis 

should consider the full range of control 

techniques (and associated emissions 

limitations) that may be applicable 

during startup and shutdown for each 

affected point source category (e.g., 

industrial boilers of 40 MMBtu/Hour 

and above).34 For certain categories, this 

additional review will likely identify 

techniques beyond those found in the 

particular EPA rules and other 

documents examined by LDEQ. 

While we acknowledge that, in certain 

cases, emissions limits applicable to 

normal operation may not be achievable 

during startup and shutdown, we also 

note that without further state review 

and analysis, it is impossible for EPA to 

assess at this time whether the work 

practices set forth in LAC 

33:III.2201.K.3 as AELs constitute 

RACT-level controls for all the affected 

sources during startup and shutdown. 

Of course, the adopted work practices 

must also be analyzed to ensure 

compliance with all other CAA 

requirements governing SIPs, including 

CAA sections 110(a)(2)(A), 110(a)(2)(C), 

110(k), 110(l), and 193, as discussed in 

EPA’s 2015 SSM SIP Action. 

Comment 5: The Industry commenters 

next discussed the EPA’s second 

criterion for developing AELs as 

outlined in the 2015 SSM SIP Action, 

taking issue with the EPA-identified 

deficiency concerning whether use of 

the selected control strategy for the 

source category is technically infeasible 

during startup or shutdown periods.35

Industry commenters stated that LDEQ 

had justified its inclusion of work 

practice standards during periods of 

startup and shutdown based on 

technical infeasibility of other control 

measures during such periods. In its 

comments, LDEQ stated the constraints 

of SCR and SNCR and their 

effectiveness during periods of startup 

and shutdown have been well 

documented. LDEQ also noted with 

examples that the need to account for 

transient conditions (e.g., startups and 

shutdowns) for the affected NOX sources 

is not limited to sources with postcombustion controls. Also, LDEQ stated 

that there is a need to recognize this 

infeasibility and that limitations in both 

control technologies and test methods 

render work practice standards 

preferable to numerical emission 

limitations during periods of startup 

and shutdown. 

Response: As noted previously, EPA 

recognizes that there are instances 

where compliance with a SIP emissions 

limitation for an affected source 

category using a specific control 

technology may be infeasible during 

certain modes of operation, such as 

during startup and shutdown. We also 

recognize that during those times, work 

practice requirements may be preferable 

to numerical emission limits and that 

such work practice requirements may be 

an important component of enforceable 

emission limitations covering all 

periods of operation for affected sources 

under a SIP rule, such as LAC 

33:III.Chapter 22. For certain sources 

and source categories subject to LAC 

33:III.Chapter 22, however, 

demonstrating compliance with the 

existing numerical emissions limitation 

in LAC 33:III.2201.D may be achievable 

during all modes of operation. In those 

situations, compliance with that degree 

of emission control (LAC 33:III.2201.D), 

as stated in 2015 SSM SIP Action,36

needs to be on a continuous or regular 

basis. 

In evaluating a state’s promulgation of 

rules creating AELs in the form of work 

practice requirements and their review 

as a SIP revision, EPA must ensure that 

the new work practices comply with all 

CAA requirements for SIPs, including 

the necessity that the emissions 

associated with such work practice 

requirements be legally and practically 

enforceable (with appropriate 

monitoring, recordkeeping and 

reporting), meet other applicable 

requirements (e.g., applicable RACT/ 

Reasonably Available Control Measures 

(RACM) requirements), and not interfere 

with the attainment or maintenance of 

the NAAQS, as required by CAA section 

110(l). Without further State review and 

analysis, it is impossible for EPA to 

assess at this time whether the work 

practices set forth in LAC 

33:III.2201.K.3 as AELs properly 

consider technical infeasibility of 

controls for all affected sources and, for 

example, constitute RACT-level controls 

for all the affected sources during 

startup and shutdown. For the reasons 

stated elsewhere in this rulemaking 

action, EPA is determining that 

Louisiana’s SIP submittal falls short of 

these requirements and fails to fully 

correct to deficiency with the Louisiana 

SIP identified in the 2015 SSM SIP 

Action. 

Comment 6: The Industry commenters 

move to the fourth recommended 

criterion for the development of AELs as 

listed in the 2015 SSM SIP Action.37


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38See 88 at 38452. 

39 80 FR at 33947. 

40 Id. at 33980. 

41See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 

1028, 1036–37 (7th Cir. 1984); see also 88 FR at 

38452, n. 30. 

42 80 FR at 33865. 

These commenters objected to the EPAidentified deficiency that the State air 

agency, as part of its justification for the 

proposed SIP revision, failed to properly 

analyze the potential worst-case 

emissions that could occur during 

startup and shutdown based on the 

applicable AEL.38 These commenters 

stated that when compared to the SIPcalled exemption in LAC 33:III.2201.C.8 

of the Louisiana SIP, the additional 

controls imposed by LAC 33:III.2201.K.3 

can only serve to improve ambient air 

quality. Industry commenters asserted 

that a worst-case emissions scenario 

would be reflected in an (overly 

conservative) assumption that the 

removal of the startup and shutdown 

exemption and the imposition of the 

additional work practice requirements 

in LAC 33:III.2201.K.3 have no effect on 

air quality. The Industry commenters 

then referred to the State’s meeting of 

the ozone NAAQS in recent years as the 

reason or justification to refute EPA’s 

stated deficiency in LDEQ’s analysis. In 

its response to this EPA-identified 

deficiency, LDEQ noted that LAC 

33:III.919 (Emission Inventory) requires 

sources quantify and separately report 

emissions during startups and 

shutdowns. Similar to the Industry 

comments and the overly conservative 

assumption that the work practice 

requirements in LAC 33:III.2201.K.3 

have no demonstrable impact on NOX

emissions, LDEQ stated that a better 

representation of the potential ‘‘worstcase’’ scenario would be the historical 

emissions data from the sources covered 

by LAC 33:III.Chapter 22. LDEQ then 

noted the decline in the design values 

for the 8-hour ozone NAAQS during the 

time period that the SIP-called 

exemption in LAC 33:III.2201.C.8 was in 

effect and that historical actual NOX

emissions from sources subject to LAC 

33:III.Chapter 22 have declined 47.9 

percent from 2005 to 2022. 

Response: EPA is cognizant and 

appreciative of LDEQ’s efforts in 

reducing ozone concentrations to the 

benefit of public health in the Baton 

Rouge area. We also note that the ozone 

pollution control strategy is a complex 

function of meteorology, VOC and NOX

emissions controls. Federal rules, 

including the Cross-State Air Pollution 

Rule, the Tier 3 Vehicle Emissions and 

Fuels Standards, and mobile source fleet 

turnover also play a significant role in 

reducing ozone-forming pollution. 

We note that EPA’s 2015 SIP call for 

LAC 33:III.2201.C.8 of the Louisiana SIP 

was not based on specific demonstrated 

air quality concerns, but rather on EPA’s 

interpretation of the CAA that emission 

limitations in SIPs cannot include 

exemptions for emissions during 

periods of startup and shutdown. In 

addition, the LDEQ statement that 

historical excess emissions associated 

with the exemption provided by LAC 

33:III.2201.C.8 have not caused or 

contributed to an exceedance or 

violation of a NAAQS does not mean 

that such emissions could not do so at 

some time in the future. Also, as stated 

in the 2015 SSM SIP Action, given that 

there are many locations where air 

quality is not monitored such that a 

NAAQS exceedance or violation could 

be detected, the inability to demonstrate 

that such excess emissions have not 

caused or contributed to an exceedance 

or violation of a NAAQS would not be 

proof that they have not.39

Although an affected point source 

may not have in fact emitted sufficient 

NOX to exceed a NAAQS during past 

periods during which it was subject to 

the impermissible exemption provided 

by LAC 33:III.2201.C.8 for NOX

emissions during periods of startups 

and shutdowns, the SIP does not 

prevent the source from doing so in the 

future (for example if circumstances 

arise that necessitate such emissions) 

under the work practice requirements 

provided by LAC 33:III.2201.K.3. Such 

NOX emissions may be significantly 

higher than historical actual emissions, 

especially for those sources (e.g., 

process heaters and furnaces without a 

control device required under a SIP 

rule) where the only requirements 

during startup and shutdown under 

LAC 33:III.2201.K.3 are the 

unenforceable ‘‘general duty’’ 

provisions of LAC 33:III.2201.K.3.a. As 

stated in EPA’s 2015 SSM SIP Action, 

AELs applicable during startup and 

shutdown cannot allow an 

inappropriately high level of emissions 

or an effectively unlimited or 

uncontrolled level of emissions, as those 

would constitute impermissible de facto 

exemptions for emissions during certain 

modes of operation.40

Had LDEQ simply removed the 

impermissible exemption in LAC 

33:III.2201.C.8, it would likely have 

been approvable, but here, the EPA 

must also evaluate whether the AELs 

(developed to replace the removed 

exemption) meet CAA requirements; we 

cannot presume that the SIP is sufficient 

solely because it contains some kind of 

AEL requirement where previously 

there was none. For example, the AEL 

may allow for emissions that are 

functionally equivalent to an 

impermissible exemption. Finally, we 

also note that the removal of the 

exemption in LAC 33:III.2201.C.8 and 

the addition of LAC 33:III.2201.K is not 

an severable piece of the submission 

that EPA can approve without taking 

action on the AEL Without the State’s 

consent, the proposed disapproval of 

the addition of LAC 33:III.2201.K to the 

Louisiana SIP with approval of the 

removal of LAC 33:III.2201.C.8 from the 

SIP would make the SIP more stringent 

than Louisiana anticipated or 

intended.41

Comment 7: The Industry commenters 

then move to the fifth recommended 

criterion for consideration in the 

development of AELs, as listed in the 

2015 SSM SIP Action—namely, that 

AELs should include a requirement that 

‘‘all possible steps are taken to minimize 

the impact of emissions during startup 

and shutdown on ambient air 

quality.’’ 42 Industry commenters reject 

as unnecessary EPA’s recommended 

language that could be used to meet the 

fifth criterion. In addition, the Industry 

commenters, as well as LDEQ in its 

comments, stated that frequency and 

duration of startup and shutdown 

events are addressed in LAC 

33:III.2201.K.1 and LAC 

33:III.2201.K.3.a, respectively; thus, the 

requirement to take all possible steps to 

minimize impacts of emissions during 

startups and shutdowns on ambient air 

quality is met. 

Response: The failure to include 

EPA’s recommended language in LAC 

33:III.2201.K is not a basis for our 

disapproval. By recommending a 

revision to LAC 33:III.2201.K that would 

require the owner or operator to take all 

possible steps so that NAAQS or PSD 

increments are not exceeded as a result 

of emission events from these sources, 

EPA suggested language that might be 

viewed as addressing the deficiency 

identified in the proposal notice with 

respect to proper consideration of the 

fifth recommended criterion. 

Under LAC 33:III.2201.K.1, affected 

point sources that are shut down 

intentionally more than once per month 

are excluded from the option of 

choosing to comply with the work 

practice standards in LAC 

33:III.2201.K.3 in lieu of complying 

with the emission factors in LAC 

33:III.2201.D. While this exclusion 

limits the number of sources that may 

elect to comply with the work practice 

requirements in LAC 33:III.2201.K.3, 

there is no evidence in the record 

establishing that these work practices 


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43 80 FR at 33915–33916 and 33922. 

require such sources to take all possible 

steps to minimize the impacts of 

emissions during startups and 

shutdowns on ambient air quality. 

Likewise, there is no evidence in the 

record establishing that the 

unenforceable ‘‘good air pollution 

control practices’’ requirement in LAC 

33:III.2201.K.3.a by itself constitutes 

taking all possible steps to minimize the 

impact of emissions during startup and 

shutdown on ambient air quality. 

Moreover, neither LAC 33:III.2201.K.1 

nor LAC 33:III.2201.K.3.a provide for 

making work practice-related 

information available, nor do these 

provisions address if or how the 

duration and frequency of startup and 

shutdown events are being accounted 

for, monitored, recorded, reported, 

enforced, or modeled to show the 

impact of NOX emissions from these 

events on ambient air quality is 

minimized in corresponding air permits 

issued by LDEQ. 

Comment 8: In addition to disagreeing 

with the concerns noted above related to 

the adequacy of LDEQ’s consideration of 

the recommended criteria for the 

development of AELs for periods of 

startup and shutdown, the Industry 

commenters also disagreed with several 

other EPA-identified deficiencies 

described in the June 13, 2023, 

proposed disapproval notice (including 

use of a permit-based approach to 

establish components of the AELs, 

reliance upon a permit mechanism to 

specify flue gas temperatures for 

engaging control devices such as SCR 

and SNCR under LAC 33:III.2201.K.3.c, 

and creating a non-SIP mechanism for 

amending compliance obligations 

selected under LAC 33:III.2201.K.4.b). 

The Industry commenters believed that 

these deficiencies are misplaced 

because the permitting contemplated 

under the work practice standards in 

LAC 33:III.2201.K.3.c and K.4.b through 

the modification of an affected facility’s 

permit are not SIP revisions under the 

Act. Similar to the Industry 

commenters, LDEQ also objected to 

EPA’s alleged deficiencies related to the 

use of the air permitting program as 

referenced in LAC 33:III.2201.K.3.c and 

LAC 33:III.2201.K.4.b. and EPA’s 

concerns related to the NAAQS and the 

PSD increment. LDEQ also referred to 

EPA’s letter to LDEQ, dated August 3, 

2016, comment 3.f, to justify its use of 

its air permitting program to implement 

the control obligations imposed by LAC 

33:III.2201.K.3.c. 

Response: Both the Industry 

commenters and LDEQ disagreed with 

EPA’s concerns related to the use of 

permitting mechanism referenced in 

LAC 33:III.2201.K.3.c and LAC 

33:III.2201.K.4.b. We will address the 

comments and our concerns with each 

of these provisions separately. LDEQ 

comments concerning NAAQS and the 

PSD increment as they relate to the two 

provisions above are addressed in our 

response to Comment 11 below. 

a. Concerns With LAC 33:III.2201.K.3.c 

LAC 33:III.2201.K.3.c requires control 

devices such as SCR or SNCR be 

‘‘engaged . . . as expeditiously as 

possible considering safety and 

manufacturer recommendations.’’ This 

rule goes on to say that the ‘‘appropriate 

requirements describing source-specific 

conditions or parameters’’ will be 

incorporated into the affected source’s 

permit. There are two primary problems 

with the approval of LAC 

33:III.2201.K.3.c as an alternative 

emission limitation during startup and 

shutdown into the SIP. First, in addition 

to its imprecise and vague terms 

creating enforcement concerns, there is 

no language in LAC 33:III.2201.K.3.c 

which actually requires the use of a 

control device by any affected source or 

source category under LAC 

33:III.2201.K. That is, the work practice 

requirement to engage control devices as 

expeditiously as possible is not linked 

to any specific source or source 

category. Presumably, the requirement 

for and use of a control device is 

contained in the source’s air permit. The 

second problem with LAC 

33:III.2201.K.3.c then arises when it 

references such permits as the vehicle to 

be used to establish source-specific 

conditions and parameters for the 

commencement of operation of the 

control device. As LDEQ concedes in its 

comments, the establishment of both the 

obligation to use a control device and 

the establishment of source-specific 

conditions associated with use of a 

control device are occuring outside the 

SIP rule itself. 

CAA section 110(a)(2)(A) requires that 

SIPs include enforceable emission 

limitations, including during periods of 

startup and shutdown. Establishing 

control device obligations and 

associated conditions in a source’s 

permit rather than the SIP rule (e.g., 

LAC 33:III.2201.K.3.c) does not satisfy 

the enforceable emission limitations 

requirement for SIP rules, as set forth in 

CAA section 110. 

The fact that EPA has approved a 

state’s air permitting program itself into 

the SIP does not mean that EPA has 

approved the actual contents of each 

permit issued or has made such 

contents an approved part of the SIP.43

While inclusion of these components of 

the AEL in a permit issued under an 

EPA-approved SIP permitting program 

makes the requirements federally 

enforceable, the State rules do not 

provide a SIP mechanism for assuring 

those requirements are permanent and 

would not be changed without first 

going through the CAA’s SIP revision 

process, as required by section 110 of 

the Act. For example, there is nothing 

in LAC 33:III.2201.K that prohibits an 

affected source from amending its air 

permit to revoke or revise its obligation 

to install a control device; the language 

in LAC 33:III.2201.K.3.c applies only if 

a source is required to have a control 

device, presumably under some other 

provision of State law or regulation. 

Such untethered obligations do not meet 

the CAA requirements for ‘‘enforceable 

emission limitations’’ in SIPs. 

Furthermore, use of a permit-based 

approach when establishing essential 

components of an alternative work 

practice standard outside of the SIP 

process (including public notice and 

comment) circumvents EPA’s role in 

reviewing and approving permanent SIP 

emission limitations to ensure that AELs 

are ‘‘enforceable,’’ as required by CAA 

section 110(a)(2)(A) and 110(a)(2)(C). 

This non-SIP mechanism also creates 

the potential for confusion because 

conditions and obligations of the AEL 

would not be contained in the SIP, 

allowing for the possibility that 

conditions and obligations of non-SIP 

AELs might conflict with the work 

practice requirements in the SIP. 

Moreover, it does so without the 

opportunity for EPA review or 

disapprove where the AEL fails to meet 

CAA requirements for SIPs. 

Finally, in the context of emission 

limitations contained in a SIP, EPA 

views the approach of establishing AELs 

through a permit program that does not 

involve submitting the relevant permit 

requirements to the EPA for inclusion in 

the SIP as a form of ‘‘director’s 

discretion,’’ a type of provision that, as 

explained in the 2015 SSM SIP Action, 

is inconsistent with CAA requirements 

because it would allow the state 

permitting authority to create 

alternatives to SIP emission limitations 

without complying with the CAA’s SIP 

revision requirements. 

In addition to the concerns noted 

above and in response to LDEQ’s 

comment regarding EPA’s August 3, 

2016 comment letter (comment 3.f), we 

note that this document (EPA’s 2016 

comment letter) is made available in 

docket for this rulemaking action. The 

August 3, 2016, comment 3.f reads: 

‘‘The EPA encourages the operation and 

maintenance of control devices in accordance 


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with safety and manufacturer 

recommendations, as required by proposed 

rule LAC 33:III.2201.K.3.c; however, for 

enforceability purposes, we believe that the 

rule should make clear that the source’s Title 

V operating permit will include specific 

conditions that identify/detail when safe 

operation of control devices (including SCR/ 

SNCR) will begin.’’ 

Comment 3.f was intended to assure 

consistency between the proposed SIP 

revision and the specific conditions and 

contents of a modified Title V permit of 

the affected NOX point source and to 

facilitate enforceability and compliance 

determinations. Nothing in the August 

3, 2016, comment 3.f states, or should 

be construed to mean, that EPA is 

advocating or suggesting circumvention 

or bypassing of the CAA’s SIP revision 

process, or allowing LDEQ to employ an 

air permitting program as a substitute 

for SIP revision requirements through 

LAC 33:III.2201.K.3.c. Moreover, EPA in 

comment 3.f is not suggesting that the 

Title V permit be the only place that 

contains these specific conditions. 

b. Concerns with LAC 33:III.2201.K.4.b 

We now turn to the objections by the 

Industry commenters and LDEQ to 

EPA’s concerns with the approvability 

of LAC 33:III.2201.K.4.b which requires 

the incorporation of the provisions of 

LAC 33:III.2201.K.1 and/or K.3 into the 

applicable permit for each affected 

facility. LAC 33:III.2201.K.4.b also states 

that the owner or operator may elect to 

revise the method of compliance with 

LAC 33:III.2201.K for one or more 

affected point sources by means of a 

permit modification. 

In its comments, LDEQ noted that the 

only options available to the owner or 

operator of an affected point source are 

to comply with the emission factors set 

forth in LAC 33:III.2201.D or with the 

work practice standards in LAC 

33:III.2201.K.3. The Industry 

commenters asserted that CAA section 

110 does not require EPA to approve 

each permit modification that changes 

the compliance option selected under 

LAC 33:III.2201.K.4.b and to submit it as 

a SIP revision because such changes are 

not, in fact, SIP revisions. 

In response to these comments, we 

first note that here the ‘‘compliance 

options’’ are different emission 

limitations and not merely how to 

comply with a single limit. We agree 

with the commenters that the decision 

by a source to choose one of two 

different emission limitations need not 

be treated as a revision to the SIP, 

provided EPA has previously reviewed 

and approved both emission limitations 

as meeting CAA requirements and 

incorporated both limitations into the 

SIP. As stated earlier, LAC 

33:III.2201.K.4 provides that for periods 

of startup and shutdown of affected 

point sources, the source owner or 

operator is required to notify LDEQ by 

May 1, 2017, of its choice of whether the 

source will comply with LAC 

33:III.2201.K.1 or LAC 2201.K.3 during 

periods of startup and shutdown. Also, 

LAC 33:III.2201.K.4b requires LDEQ to 

incorporate the option chosen into the 

applicable permit for each affected 

facility, and the source may modify its 

permit (after notice and comment) and 

choose the other option in the future. 

The option of complying with the 

emissions limitations in LAC 

33:III.2201.K.1 incorporates the 

requirements of LAC 33:III.2201.D and 

LAC 33:III.2201.E which have been 

previously approved into the Louisiana 

SIP; however, the other option of 

complying alternative emissions 

limitations developed pursuant to LAC 

33:III.2201.K.3 is not part of the EPAapproved Louisiana SIP. For the reasons 

discussed in this rulemaking action, the 

alternative work practice requirements 

of LAC 33:III.2201.K.3 do not satisfy the 

CAA requirements for SIPs; 

consequently, LAC 33:III.2201.K.4.b 

cannot be approved into the Louisiana 

SIP at this time. 

B. Comments by Sierra Club and the 

Anonymous Commenter 

Comment 9: Sierra Club expressed 

support for the proposed disapproval 

and thanked EPA for a thorough 

evaluation in this rulemaking. 

Response: EPA acknowledges the 

support. 

Comment 10: Sierra Club requested 

that EPA finalize its disapproval and 

promulgate a Federal Implementation 

Plan (FIP) that corrects the deficiencies 

with LAC 33:III.2201.C.8, as identified 

in the 2015 SSM SIP Action. In 

promulgating a FIP, the commenter goes 

on to recommend that the EPA simply 

remove LAC 33:III.2201.C.8 from the 

Louisiana SIP without attempting to 

create impractical and unenforceable 

work practice standards. 

Response: CAA section 110(c)(1) 

requires EPA to promulgate a FIP within 

two years of the effective date of this 

final disapproval action, unless EPA 

first approves a complete SIP revision 

that corrects the deficiency with LAC 

33:III.2201.C.8 as identified in the 2015 

SSM SIP Action. EPA intends to work 

in partnership with the State to resolve 

this issue in an equitable manner 

consistent with the CAA requirements 

and court rulings. EPA is hopeful that 

Louisiana will submit a revision that 

corrects the deficiency and a FIP will 

not be necessary as a result of this 

disapproval. EPA notes that states are 

not required to adopt and submit to EPA 

SIP revisions creating AELs for periods 

of SSM. States may choose to remove 

SSM provisions providing for 

exemptions (whether automatic or 

discretionary) or affirmative defense 

provisions altogether, rather than 

developing AELs for periods of SSM. 

For example, following this disapproval, 

Louisiana could elect not to create new 

AEL regulations such as LAC 

33:III.2201.K and instead remove LAC 

33:III.2201.C.8 in its entirety and rely 

upon their enforcement discretion 

should a source exceed an emission 

limit which is part of the EPA-approved 

SIP. Finally, it is outside the scope of 

this rulemaking to address contents of a 

future rule (FIP), should one become 

necessary. 

Comment 11: Sierra Club expressed a 

belief that the work practices (in LAC 

33:III.2201.K) are too vague and 

ambiguous to be enforceable and that 

they do not reflect adequate 

consideration of the seven specific 

criteria in EPA’s guidance by which 

AELs for startup and shutdown should 

be developed. Sierra Club outlined the 

reasons why LDEQ’s proposed reliance 

on these SSM work practice standards 

would be inappropriate. Specifically, 

Sierra Club states that Louisiana’s SIP 

submittals fail to demonstrate that the 

work practice standards in LAC 

33:III.2201.K: (1) are narrowly tailored 

to defined source categories using 

specific control strategies or that the use 

of the control strategy is ‘‘technically 

infeasible’’ during startup and 

shutdown; (2) would not violate the 

NAAQS or PSD increments; and (3) 

require that the actions during startup 

and shutdown are properly documented 

or that the work practice standards are 

enforceable. 

Response: As outlined in our proposal 

notice, Louisiana’s SIP submittals do 

not demonstrate LDEQ’s proper 

application and consideration of certain 

criteria recommended by EPA for a 

state’s development of the alternative 

work practice requirements, such as 

those in LAC 333:III.2201.K. Our 

assessment of the SIP submittals with 

respect to the first criterion (i.e., that 

AELs should apply to specific, narrowly 

tailored source categories using specific 

control technologies) is fully addressed 

in our responses to Comments 2, 3, and 

4. Likewise, our response to Comment 5 

provides our assessment of the AELs in 

LAC 33:III.2201.K.3 with respect to the 

recommendation in criterion 2 (i.e., that 

use of the control strategy for the 

specific source category is technically 

infeasible). With respect to Sierra Club’s 

concern that LDEQ failed to 


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44 80 FR at 33913. 

demonstrate that the work practice 

standards in LAC 33:III.2201.K would 

not violate NAAQS or PSD increments, 

we note that states have a statutory duty 

to develop and submit SIPs and SIP 

revisions, as appropriate, that provide 

for the attainment, maintenance and 

enforcement of the NAAQS, as well as 

meeting many other CAA requirements 

and objectives (e.g., protecting PSD 

increments). The specific procedural 

and substantive requirements that states 

must meet for SIPs are set forth in CAA 

section 110(a)(1) and section 110(a)(2), 

other more specific requirements 

throughout the CAA (e.g., the 

attainment plan requirements for each 

of the NAAQS as specified in CAA Title 

I, Part D), and EPA regulations. It is 

important to note, however, that EPA’s 

2015 SIP call for LAC 33:III.2201.C.8 of 

the Louisiana SIP was not based on 

demonstrated air quality concerns, but 

rather on EPA’s interpretation of the 

CAA that emission limitations in SIPs 

cannot include exemptions for 

emissions during periods of startup and 

shutdown. LDEQ has removed the 

exemption and adopted LAC 

33:III.2201.K. in its place, including the 

work practice standards applicable to 

periods of startup and shutdown 

contained in LAC 33:III.2201.K.3. As 

stated in response to Comment 6 above, 

some affected sources may emit more 

NOX under the work practice 

requirements provided by LAC 

33:III.2201.K.3 and such emissions may 

be significantly higher than historical 

actual emissions for such sources. 

Notwithstanding the concerns expressed 

by Sierra Club with respect to the 

NAAQS and PSD increment, EPA 

concludes that the SIP submittals do not 

correct the deficiency in the Louisiana 

SIP, as identified in Louisiana SIP the 

2015 SSM SIP call for the reasons 

discussed in our proposal action, this 

notice, and the 2015 SSM SIP Action. 

Finally, with respect to Sierra Club’s 

comment claiming that the work 

practice standards in LAC 

33:III.2201.K.3 fail to ensure the actions 

during startup and shutdown are 

properly documented or that the work 

practice standards are enforceable, we 

note that section LAC 33:III.2201.K.3.e 

requires a source to ‘‘maintain records 

of the calendar date, time, and duration 

of each startup and shutdown’’ and 

section LAC 33:III.2201.K.3.f requires a 

source to ‘‘maintain records of the 

type(s) and amount(s) of fuels used 

during each start-up and shutdown.’’ 

However, the required records of LAC 

33:III.2201.K.3.e and LAC 

33:III.2201.K.3.f are only made available 

upon request by authorized 

representatives of LDEQ, per LAC 

33:III.2201.K.3.g. As discussed in our 

response to Comment 12 below, EPA 

generally agrees that SIP provisions 

must include adequate monitoring, 

recordkeeping, and reporting 

requirements, as appropriate, to be 

legally and practically enforceable; 

however, EPA has determined the 

provisions of LAC 33:III.2201.K do not 

meet minimum CAA requirements for 

AELs for reasons unrelated to the issue 

of recordkeeping or reporting, and thus 

is disapproving the provision for those 

reasons. 

Comment 12: As part of its comments, 

Sierra Club attached and incorporated 

its August 3, 2016, letter to LDEQ that 

contains a discussion of its concerns 

with the State’s proposed adoption of 

LAC 33:III.2201.K. Expanding upon the 

comments submitted to EPA on the 

enforceability of LAC 33:III.2201.K, 

Sierra Club noted a lack of reporting 

requirements in LAC 33:III.2201.K. 

Sierra Club also claimed that the work 

practice requirements set forth in LAC 

33:III.2201.K do not meet the CAA 

section 110(a) enforceability 

requirement because: (1) the work 

practice requirements in LAC 

33:III.2201.K do not limit emissions on 

a continuous basis; (2) alternative limits 

or work practices must be incorporated 

through the SIP amendment process, 

allowing for public notice and comment 

and EPA approval; and (3) sourcespecific alternative limits work practices 

are generally not proper at all, and 

source-specific alternative plans under 

LAC 33:III.2201.E.1 and E.2 do not 

comport with the CAA requirements for 

SIP revisions (including public 

comment). 

Response: EPA supports the use of 

properly developed and enforceable 

AELs for modes of operation during 

which otherwise applicable emission 

limitations cannot be met, as may be the 

case during startup or shutdown. These 

AELs, whether a numerical limitation, 

technological control requirement or 

work practice requirement, would apply 

during a specific mode of operation as 

a component of the continuously 

applicable emission limitation. All 

components of the resulting emission 

limitation must meet the substantive 

requirements applicable to the type of 

SIP provision at issue, must meet the 

applicable level of stringency for that 

type of emission limitation, and must be 

legally and practically enforceable.44

EPA notes that Sierra Club also 

commented that LAC 33:III.2201.K lacks 

sufficient reporting requirements to 

support enforcement of the work 

practice standards. The commenter 

suggested that the state should require 

at least quarterly reporting by sources 

concerning their compliance with the 

AELs. EPA generally agrees that SIP 

provisions must include adequate 

monitoring, recordkeeping, and 

reporting requirements, as appropriate, 

to be legally and practically enforceable. 

As described in the proposal notice and 

in this final rulemaking, EPA has 

determined the provisions of LAC 

33:III.2201.K do not meet minimum 

CAA requirements for AELs for reasons 

unrelated to the issue of reporting, and 

thus is disapproving the provision for 

those reasons. Should Louisiana make a 

new SIP submission containing AELs, 

we encourage the State to consider 

whether the reporting requirements are 

adequate to make the AELs legally and 

practically enforceable. Because the 

work practice standards in LAC 

33:III.2201.K.3 are intended to be 

components of a continuous SIP 

emissions limitation, the provision and 

associated reporting requirements must 

meet all applicable CAA requirements 

for SIPs, including CAA sections 

110(a)(2), 113, 302(k), and 304, as well 

as applicable regulatory requirements 

including 40 CFR 51.211. 

Turning to Sierra Club’s comment that 

the work practice requirements set forth 

in LAC 33:III.2201.K do not meet the 

CAA section 110(a) enforceability 

requirement because they do not limit 

emissions on a continuous basis, we 

previously noted in our response to 

Comments 3 and 8 that the work 

practice standards in LAC 

33:III.2201.K.3.c are not sufficiently tied 

to any particular source or source 

category under the SIP to ensure their 

enforceability. In addition, as Sierra 

Club correctly noted, the imprecise and 

vague language in LAC 33:III.2201.K.3.c 

(e.g., ‘‘as expeditiously as possible, 

considering safety and manufacturer 

recommendations’’ and ‘‘engage’’) may 

be read so as to create situations 

wherein startup and shutdown 

emissions are functionally exempt, 

thereby creating a non-continuous 

emissions limitation that is inconsistent 

with CAA requirements for SIPs. EPA 

also agrees with Sierra Club’s suggestion 

that certain control technologies may be 

employed in different manners at 

different times resulting in great 

variation in the amount of emission 

control and thus the requirements 

should be described in more defined 

terms than currently required by LAC 

33:III.2201.K.3.c. In addition, this 

information should have been 

considered by LDEQ to ensure the 

development of enforceable work 


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45See Sierra Club comment letter to LDEQ dated 

August 3, 2016, pages 9–10, included in the docket 

for this action. 

46 88 FR at 38453, Section IV Environmental 

Justice Considerations. 

47 Id. at 38455, Section V Statutory and Executive 

Order Reviews, Executive Order 12898: Federal 

Actions To Address Environmental Justice in 

Minority Populations and Low-Income Populations. 

practice requirements that would 

provide RACT-level controls during the 

entire duration of startup and shutdown 

periods.45

Next, we address Sierra Club’s 

comment that alternative emission 

limits or work practices must be 

incorporated through the SIP process 

and allow for public notice/comment 

and EPA approval. Sierra Club noted 

that, during periods of startup and 

shutdown, LAC 33:III.2201.K provides 

certain affected sources with the option 

of complying with the LAC 

33:III.2201.K.1 (and existing emission 

factors in LAC 33:III.2201.D or an 

alternative plan approved under LAC 

33:III.2201.E.1 or E.2) or the work 

practice standards under LAC 

33:III.2201.K.3. Sierra Club asserted that 

any choice by a particular source to use 

an alternative plan or the work practice 

standards should be incorporated into 

the Louisiana SIP after public comment 

and EPA approval as a SIP revision. As 

stated earlier, review of Louisiana’s SIP 

submittals included an evaluation and 

determination of whether they corrected 

the Louisiana SIP deficiency identified 

in the 2015 SSM SIP Action. Since we 

are determining in this rulemaking that 

the alternative emission limitations in 

Louisiana’s SIP submittals do not 

correct that deficiency, we do not need 

to address the issue raised by the Sierra 

Club that a SIP cannot provide equally 

approvable options that provide for 

continuous and enforceable emission 

limitations meeting all substantive CAA 

requirements. We note, however, that 

under LAC 33:III.2201.K.4, owners and 

operators were required to notify LDEQ 

by May 1, 2017, whether each affected 

point source will comply with LAC 

33:III.2201.K.1 or LAC 33:III.2201.K.3 

during periods of startup and shutdown. 

As noted in our response to Comment 

8, had the requirements of LAC 

33:III.2201.K satisfied all other 

applicable requirements for SIPs 

including being continuous and 

practically enforceable, met applicable 

stringency requirements, and required 

appropriate monitoring, recordkeeping 

and reporting, EPA believes that the 

mechanism set forth in LAC 

33:III.2201.K.4 may have been 

acceptable under the CAA; also, the 

selection or revision of which approved 

emission limitation option a particular 

source chose to comply with would not 

necessitate a SIP revision. We are noting 

a difference between using a permit to 

incorporate a selected approved 

compliance option versus the use of the 

permitting process to establish 

necessary elements of emission 

limitations, the latter of which, as 

discussed in our response concerning 

LAC 33:III.2201.K.3.c, is not 

appropriate. For the reasons discussed 

elsewhere in this rulemaking action, 

LAC 33:III.2201.K does not meet all 

CAA SIP requirements. 

Finally, Sierra Club claimed that 

source-specific alternative limits and 

work practices are generally not proper 

at all (and source-specific alternative 

plans under LAC 33:III.2201.E.1 and E.2 

do not comport with the CAA 

requirements for SIP revisions). Since 

EPA is determining that the Louisiana 

SIP submittals do not correct the 

deficiency in the Louisiana SIP as 

identified in the 2015 SSM SIP Action 

for all the reasons discussed elsewhere 

in this rulemaking action, there is no 

need for an additional response to Sierra 

Club’s concern at this time. 

Comment 13: The anonymous 

commenter, referencing the 2008 Sierra 

Club case opinion by the D.C. Circuit 

court, claimed the court held that a 

general duty to minimize emissions is 

not a CAA section 112-compliant 

standard. Considering that states have 

the responsibility of developing plans 

that best suit their needs, the 

commenter remarked that EPA should 

explain how it reached the conclusion 

that a general duty to minimize 

emissions in LAC 33:III.2201.K.3.a 

during SSM is not a section 110- 

compliant standard. 

Response: We believe commenter’s 

reference to the 2008 D.C. Circuit case 

is Sierra Club v. Johnson, 551 F.3d 1019, 

1021 (D.C. Cir. 2008) (interpreting the 

definition of emission limitation in 

section 302(k) and section 112 of the 

CAA). The commenter noted that LAC 

33:III.2201.K.3.a is a general duty 

provision requiring the affected point 

sources to minimize emissions. As 

discussed in our proposed action, 

standing alone, the general duty 

provision in LAC 33:III.2201.K.3.a does 

not comply with section 110 CAA 

requirements for SIPs. For example, it is 

unclear how the general duty to utilize 

‘‘good air pollution control practices’’ 

required by LAC 33:III.2201.K.3.a, 

would be practically enforceable and 

serve as a sufficient limitation on 

emissions (as defined in 42 U.S.C. 

7602(k)) to satisfy applicable SIP 

requirements (e.g., ensure the 

application of RACT-level controls 

during startup and shutdown). 

Additional concerns to LAC 

33:III.2201.K.3.a are discussed 

elsewhere herein, including our 

response to Comment 4. In addition, the 

2015 SSM SIP Action discussed at 

length why general duty provisions in 

SIPs cannot constitute practically 

enforceable, continuous emissions 

limitations as required by the CAA. 

Comment 14: Finally, the anonymous 

commenter claimed being misled by the 

notice, stating it appears that the 

Environmental Justice (EJ) concerns are 

now described as the purpose of the 

SSM policy and the 2015 SSM SIP 

Action. Although the commenter 

expresses agreement with EPA for 

having concern for protection of 

overburdened communities, it questions 

the need for the EJ and the detaileddemographic survey and its relationship 

to the basis of the June 13, 2023, 

proposed action. 

Response: EPA acknowledges the 

commenter’s statement of support for 

the protection of overburdened 

communities, as neighborhoods in close 

proximity of industrial sources may be 

vulnerable and subject to 

disproportionate environmental impacts 

caused by excess emissions during SSM 

events. With respect to the question of 

the relationship between EJ and the 

detailed demographic analysis and the 

basis for the proposed action, we note 

that the opening statement in section IV 

of the proposal notice stated, ‘‘For 

informational and transparency 

purposes only, the EPA is providing 

additional analysis of environmental 

justice associated with this proposed 

action for the purpose of providing 

information to the public.’’ 46 In 

addition, in section V.J of the proposal 

notice, EPA specifically wrote that the 

CAA and applicable implementing 

regulations neither prohibit nor require 

such an evaluation. While EPA 

performed an environmental justice and 

demographic analysis, the EJ ‘‘analysis 

was done for the purpose of providing 

additional context and information 

about this rulemaking to the public, not 

as a basis of the action.’’ 47

Based on the above responses to 

comments received and the identified 

deficiencies described in section II.B at 

88 FR 38450–38452 of our proposal 

notice, we disagree with the Industry 

commenters’ statement characterizing 

our June 13, 2023 proposal as 

unwarranted, arbitrary and capricious. 

Therefore, we are finalizing the action 

as proposed. 

IV. Final Action 

The EPA is disapproving the revision 

to the Louisiana SIP submitted by LDEQ 


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48Consistent with our proposal (88 FR at 38453, 

footnote 31), EPA has evaluated the geographic 

scope of potential sanctions under CAA section 

179(b) resulting from our disapproval of Louisiana’s 

November 20, 2016, and June 9, 2017, SIP 

submittals concerning LAC 33:III.2201.C.8 and LAC 

33:III.2201.K. We note that the provisions of LAC 

33:III.Chapter 22 Control of Emissions of Nitrogen 

Oxides (NOX) of the EPA-approved Louisiana SIP 

are considered elements of an implementation plan 

required under Part D of Title I of the Act. One 

provision in the Chapter 22 rules—namely, LAC 

33:III.2201.C.8—provides an exemption from 

otherwise applicable and continuous NOX emission 

limitations from affected point sources subject to 

Chapter 22. Since such exemption provisions are 

inconsistent with CAA requirements for SIPs, EPA 

issued a SIP call in 2015, and Louisiana submitted 

the proposed revisions that are the subject of our 

disapproval action. With respect to the geographic 

scope of potential sanctions under CAA section 179 

triggered by our disapproval, we note that ‘‘the EPA 

interprets the section 179 sanctions to apply only 

in the area or areas of the state that are subject to 

or required to have in place the deficient SIP and 

for the pollutant or pollutants that the specific SIP 

element addresses.’’ 80 FR 33840, 33930 (June 12, 

2015). See also 40 CFR 52.31 and 59 FR 39832, 

39835 (August 4, 1994). Here, the pollutant 

controlled by the Chapter 22 rules is NOX, a 

precursor of ozone, and it is the only pollutant that 

is the subject of the disapproval. There are no areas 

in Louisiana that are currently designated as 

nonattainment for ozone and thus there are no 

potential CAA section 179 sanctions triggered by 

our disapproval action, at this time. 

on November 20, 2016, and 

supplemented on June 9, 2017, in 

response to EPA’s 2015 SSM SIP Action 

concerning excess emissions during 

periods of SSM. In accordance with 

section 110 of the Act, we are finalizing 

disapproval of the revision to the 

Louisiana SIP that would repeal LAC 

33:III.2201.C.8 and add a new section 

LAC 33:III.2201.K Startup and 

Shutdown in its place. The EPA is also 

making a determination that this SIP 

revision fails to correct deficiencies 

identified in the June 12, 2015 SIP 

Action related to the above-referenced 

provisions. 

CAA section 110(c)(1) requires EPA to 

promulgate a FIP within 24 months of 

the effective date of this final 

disapproval action, unless EPA first 

approves a complete SIP revision that 

corrects the deficiency with LAC 

33:III.2201.C.8 as identified in the 2015 

SSM SIP Action. In addition, this final 

disapproval triggers mandatory 

sanctions under CAA section 179 and 

40 CFR 52.31 unless the State submits, 

and EPA approves, a complete SIP 

revision that corrects the identified 

deficiencies within 18 months of the 

effective date of the final disapproval 

action.48

V. Environmental Justice 

Considerations 

EPA provided an environmental 

justice analysis associated with this 

action for the purpose of providing 

information to the public in our July 22, 

2022 (87 FR 43760) proposal. As 

discussed in the proposed action, we 

believe that this final action will be 

beneficial to all population groups 

within Louisiana and may reduce 

impacts. Exemptions for excess 

emissions during periods of SSM 

undermine the ability of the SIP to 

attain and maintain the NAAQS, to 

protect Prevention of Significant 

Deterioration increments, to improve 

visibility and to meet other CAA 

requirements. Such exemption 

provisions have the potential to lessen 

the incentive for development of control 

strategies that are effective at reducing 

emissions during certain modes of 

sources’ operations such as startups and 

shutdowns or to take prompt steps to 

rectify malfunctions. Removal of these 

exemption provisions from the 

Louisiana SIP will bring the treatment of 

excess emissions in the SIP into line 

with CAA requirements; thus, sources 

in the State will no longer be able to use 

the repealed exemptions and will have 

greater incentives to control their air 

emissions. We therefore determine that 

this rule will not have 

disproportionately high or adverse 

human health or environmental effects 

on communities with environmental 

justice concerns. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, the 

EPA’s role is to review state choices, 

and approve those choices if they meet 

the minimum criteria of the Act. 

Accordingly, this final action 

disapproving Louisiana’s excess 

emissions-related rule as a SIP revision 

merely ascertains that this State law 

does not meets Federal requirements 

and therefore does not impose 

additional requirements beyond those 

imposed by State law. Additional 

information about these statutes and 

Executive orders can be found at 

www.epa.gov/laws-regulations/lawsand-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA, because this SIP disapproval does 

not in-and-of itself create any new 

information collection burdens, but 

simply disapproves certain State 

requirements for inclusion in the SIP. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. This SIP disapproval does not 

in-and-of itself create any new 

requirements but simply disapproves 

certain pre-existing State requirements 

for inclusion in the SIP. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. This action does not 

impose additional requirements beyond 

those imposed by state law. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, will result from this 

action. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the National 

Government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Coordination 

With Indian Tribal Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175, because the SIP EPA is 

disapproving would not apply on any 

Indian reservation land or in any other 

area where the EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

Thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 


ddrumheller on DSK120RN23PROD with RULES1
85124 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive order. This action is not 

subject to Executive Order 13045 

because this SIP disapproval does not 

in-and-of itself create any new 

regulations, but simply disapproves 

certain pre-existing State requirements 

for inclusion in the SIP. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the NTTAA directs 

the EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. The EPA believes that this 

action is not subject to the requirements 

of section 12(d) of the NTTAA because 

application of those requirements would 

be inconsistent with the CAA. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations, 59 FR 7629, 

February 16, 1994) directs Federal 

agencies to identify and address 

‘‘disproportionately high and adverse 

human health or environmental effects’’ 

of their actions on minority populations 

and low-income populations to the 

greatest extent practicable and 

permitted by law. EPA defines 

environmental justice (EJ) as ‘‘the fair 

treatment and meaningful involvement 

of all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies.’’ EPA further 

defines the term fair treatment to mean 

that ‘‘no group of people should bear a 

disproportionate burden of 

environmental harms and risks, 

including those resulting from the 

negative environmental consequences of 

industrial, governmental, and 

commercial operations or programs and 

policies.’’ 

The air agency did not evaluate 

environmental justice considerations as 

part of its SIP submittal; the CAA and 

applicable implementing regulations 

neither prohibit nor require such an 

evaluation. The EPA performed an 

environmental justice analysis, 

described in the section titled, 

‘‘Environmental Justice Considerations’’ 

of the June 13, 2023 (88 FR 38448) 

proposal. The analysis was done for the 

purpose of providing additional context 

and information about this rulemaking 

to the public, not as a basis of the 

action. Due to the nature of the action 

being taken here, this final action is 

expected to have a neutral to positive 

impact on the air quality of the 

previously designated Baton Rouge 

ozone nonattainment area and its 

Region of Influence. In addition, there is 

no information in the record upon 

which this final action is based 

inconsistent with the stated goal of E.O. 

12898 of achieving environmental 

justice for people of color, low-income 

populations, and Indigenous peoples. 

This final action simply disapproves a 

SIP submission as not meeting CAA 

requirements for SIPs. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

L. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 5, 2024. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action 

pertaining to the disapproval of 

Louisiana’s November 20, 2016, and 

June 9, 2017 SIP submittals may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: November 30, 2023. 

Earthea Nance, 

Regional Administrator, Region 6. 

[FR Doc. 2023–26753 Filed 12–6–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 62 

[EPA–R05–OAR–2023–0283; FRL–11127– 

02–R5] 

Air Plan Approval; Indiana; Municipal 

Solid Waste Landfill State Plan 

Approval for Designated Facilities and 

Pollutants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving Indiana’s 

state plan to control air pollutants from 

Municipal Solid Waste (MSW) 

Landfills. The Indiana Department of 

Environmental Management (IDEM) 

submitted the state plan on March 20, 

2023. The Indiana MSW landfill state 

plan was submitted to fulfill the state’s 

obligations under section 111(d) of the 

Clean Air Act (CAA) to implement and 

enforce the requirements under the 

MSW Landfills Emission Guidelines 

(EG). EPA is approving the state plan. 

DATES: This final rule is effective on 

January 8, 2024. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2023–0283. All 

documents in the docket are listed on 

the www.regulations.gov website. 

Although listed in the index, some 

information is not publicly available, 

i.e., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either through 

www.regulations.gov or at the 

Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays and 

facility closures due to COVID–19. We 

recommend that you telephone Melissa 

Hulting, Clean Air Strategies Section 

Supervisor, at (312) 886–2265 before 

visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Margaret Sieffert, Clean Air Strategies 

Section, Air Toxics Branch (AT–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–1151, 

sieffert.margaret@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 


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